SBAH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 426

FEDERAL COURT OF AUSTRALIA

SBAH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 426 MIGRATION – application for review of decision of Refugee Review Tribunal – infant appellant – notice of appeal filed by appellant's mother purportedly on behalf of the appellant – no appearance by or for the appellant hearing – unsuccessful attempt to contact appellant and mother – infant as a person under a disability – requirement for appointment of tutor or guardian – whether necessary – whether outcome of appeal binding on the infant – tutor's requirement to act through a solicitor – whether appellant prejudiced by dismissal of appeal – appropriate means of disposal of case

Judiciary Act 1903 (Cth) ss 39B, 79, 80 Migration Act 1958 (Cth) s 474 Federal Court of Australia Act 1976 (Cth) s 23 Federal Court Rules, Order 43 rules 1, 2(1), 4(1) & r5(1); Order 52 rules 38 & 38A, Order 80 Chen Shi Hai v Minister for Immigration & Multicultural Affairs (2000) 201 CLR 293, referred to Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146, referred to Soudakov v Minister for Immigration & Multicultural Affairs [2001] FCA 993, referred to Dey v Victorian Railways Commissioners 78 CLR 62, referred to SBAH OF 2001 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N357 OF 2002 MADGWICK, EMMETT & CONTI JJ 19 DECEMBER 2002 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N357 OF 2002

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: SBAH OF 2001

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIR

RESPONDENT

JUDGE: MADGWICK, EMMETT & CONTI JJ

DATE OF ORDER: 19 DECEMBER 2002

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. the appeal be dismissed pursuant to Order 52 rule 38A(1)(c) of the Federal Court Rules; 2. the respondent inform, in the manner set out in Order 3, the mother of the appellant, of: · these orders and the reasons of the Court for making them; · the provisions and effect of Order 52 rule 38A(2) of the Federal Court Rules 3. the respondent communicate in writing to the appellant's mother at all addresses known to the respondent where the appellant or the appellant's mother may be contacted, after making enquires of all reasonable sources including Aujard Lawyers. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.